[Cite as In re R.B., 2024-Ohio-3040.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re R.B. Court of Appeals No. L-23-1292
Trial Court No. JC23295039
DECISION AND JUDGMENT
Decided: August 9, 2024
*****
Laurel A. Kendall, for appellant.
MAYLE, J.
{¶ 1} This is an appeal of a December 8, 2023 judgment of the Lucas County
Court of Common Pleas, Juvenile Division, which adopted a magistrate’s decision to
transfer legal custody of the minor child, R.B., from her mother to her maternal
grandmother. As explained below, because mother did not object to the magistrate’s decision and fails to argue plain error on appeal, she has waived her right to challenge the
juvenile court’s judgment under Juv.R. 40(D)(3)(b)(iv).
I. Background
{¶ 2} On June 9, 2023, Ky.B. filed a third-party complaint for legal custody of her
granddaughter, R.B. (D.O.B. 1/02/2023). R.B.’s mother, Ka.B. (“mother”), is Ky.B.’s
daughter, and is still a minor herself. According to the complaint, grandmother filed for
custody due to mother’s alleged “negligence, violence and suicidal ideations.”
{¶ 3} Following a hearing on July 20, 2023, the court granted temporary custody
over R.B. to grandmother. The order indicates that mother, who did not attend the
hearing, was “currently a runaway” with a warrant for her arrest “on a pending felony
case.”
{¶ 4} Pursuant to Juv.R. 40, the matter was tried before a magistrate on November
30, 2023, with grandmother, mother, and mother’s counsel in attendance. R.B.’s father,
R.H. (“father”), did not participate in the proceedings even though he was served with the
complaint and the notice of hearing.
{¶ 5} Grandmother appeared pro se and testified first. According to her, mother
and father were neither suitable, nor fit, to raise R.B. She testified that father has “never”
had contact with R.B., and that mother is “mentally and physically unstable” and makes
“irrational decisions at the spur of the moment.”
2. {¶ 6} Grandmother testified that she was seeking custody of R.B. because, at the
time of hearing, mother was pregnant by a different man, and that she and the father of
the expectant child “argue a lot” and that their “living situation is unsafe [and] unstable.”
{¶ 7} For the first three months of R.B.’s life, grandmother, mother, and R.B. lived
together at grandmother’s home on Vance Street in Toledo. One day, mother went to the
store with R.B. and did not return. When grandmother called to ask where they were,
mother told her that she “[did not] want to be at home” and that she had “[her] reasons.”
Grandmother responded, “if you need some air, the baby can stay [with me]. You can
come home and see her, you know, as you need air. And she refused, refused, refused.”
About two months later, grandmother saw a video that “led [her] to go get the baby.” In
the video, mother was shown “arguing with [the] father” of her expectant child and
“throwing salt, sugar, something white all over him, and [R.B.] was lying right next to
him.” Grandmother retrieved R.B. after seeing the video and has cared for her since then.
{¶ 8} A few times a month, mother visits with R.B. at grandmother’s home for
about two hours. Under cross-examination, grandmother testified that she and mother
have “very little” contact with one another, that mother provides no diapers, formula,
food, or anything else for R.B. Grandmother claimed not to know where mother lives
because mother has identified three different addresses: an apartment “somewhere on the
east side,” a residence with an aunt on Peck Street, and “The Moody Manor.”
{¶ 9} Mother testified next. She claimed to live on Peck Street with her auntie.
Mother characterized grandmother’s testimony as “a little accurate” but maintained that
3. she “really want[s] [R.B.] to be with me.” Mother said that she is unemployed, because
she goes to school and because she has preeclampsia, which prevents her from standing
on her feet “for too long.” When asked how she would support R.B., mother testified that
she would get “clothes from the churches” where she volunteers, and she would continue
to rely upon WIC [Women, Infants, and Children] benefits. Mother testified that she
talks to R.B.’s father “sometimes.” According to her, father has not seen R.B. since R.B.
returned to grandmother’s home “because [grandmother] doesn’t want [R.B.] to be
around him.”
{¶ 10} At the conclusion of the hearing, the magistrate stated that she intended to
grant legal custody of R.B. to grandmother, and that mother and father would be entitled
to visit with R.B. by agreement of the parties. The magistrate issued a written decision
that same day, November 30, 2023, which the juvenile court adopted by judgment entry,
filed on December 8, 2023. Through appellate counsel, mother appealed and raises a
single assignment of error for our review.
Assignment of Error I: The trial court award of parenting time “as
agreed by the parties” was not supported by the manifest weight of the
evidence.
II. Law and Analysis
{¶ 11} “Juvenile courts have jurisdiction to hear institutional custody cases
(complaints filed by children services agencies alleging children to be abused, neglected
or dependent children) and to hear ‘private’ custody or non-institutional custody disputes
4. (which generally involve disputes between parents and non-parents or disputes between
unmarried parents).” In re Shepherd, 1999 WL 809760, *4 (4th Dist. Sept. 29, 1999).
R.C. 2151.23(A)(2) governs private custody disputes, like this one, between parents and
non-parents. In re Perales, 52 Ohio St.2d 89, 96 (1977). Under that statute, a juvenile
court has “exclusive original jurisdiction * * * to determine the custody of any child not a
ward of another court of this state.”
{¶ 12} In private custody cases between natural parents and non-parents, the
primary consideration is the natural parent’s fitness or suitability. Reynolds v. Goll, 75
Ohio St.3d 121 (1996); see also, In re Hockstok, 2002-Ohio-7208, syllabus (“a trial court
must make a parental unsuitability determination on the record before awarding legal
custody of the child to the nonparent.”). In In re Perales, the Ohio Supreme Court set
forth the following criteria to determine whether a natural parent is unsuitable:
“[T]he hearing officer may not award custody to the nonparent
without first making a finding of parental unsuitability—that is, without
first determining that a preponderance of the evidence shows [1] that the
parent abandoned the child, [2] that the parent contractually relinquished
custody of the child, [3] that the parent has become totally incapable of
supporting or caring for the child, or [4] that an award of custody to the
parent would be detrimental to the child. (Emphasis added.) Id. at syllabus
citing R.C. 2151.23(A)(2).
5. {¶ 13} “If a court concludes that any one of these circumstances describes the
conduct of a parent, the parent may be adjudged unsuitable, and the state may infringe
upon the fundamental parental liberty interest of child custody.” In re Hockstok at ¶ 17.
The nonparent seeking custody bears the burden of demonstrating that the parent is
unsuitable. Depinet v. Norville, 2020-Ohio-3843, ¶ 14 (3d Dist.).
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as In re R.B., 2024-Ohio-3040.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re R.B. Court of Appeals No. L-23-1292
Trial Court No. JC23295039
DECISION AND JUDGMENT
Decided: August 9, 2024
*****
Laurel A. Kendall, for appellant.
MAYLE, J.
{¶ 1} This is an appeal of a December 8, 2023 judgment of the Lucas County
Court of Common Pleas, Juvenile Division, which adopted a magistrate’s decision to
transfer legal custody of the minor child, R.B., from her mother to her maternal
grandmother. As explained below, because mother did not object to the magistrate’s decision and fails to argue plain error on appeal, she has waived her right to challenge the
juvenile court’s judgment under Juv.R. 40(D)(3)(b)(iv).
I. Background
{¶ 2} On June 9, 2023, Ky.B. filed a third-party complaint for legal custody of her
granddaughter, R.B. (D.O.B. 1/02/2023). R.B.’s mother, Ka.B. (“mother”), is Ky.B.’s
daughter, and is still a minor herself. According to the complaint, grandmother filed for
custody due to mother’s alleged “negligence, violence and suicidal ideations.”
{¶ 3} Following a hearing on July 20, 2023, the court granted temporary custody
over R.B. to grandmother. The order indicates that mother, who did not attend the
hearing, was “currently a runaway” with a warrant for her arrest “on a pending felony
case.”
{¶ 4} Pursuant to Juv.R. 40, the matter was tried before a magistrate on November
30, 2023, with grandmother, mother, and mother’s counsel in attendance. R.B.’s father,
R.H. (“father”), did not participate in the proceedings even though he was served with the
complaint and the notice of hearing.
{¶ 5} Grandmother appeared pro se and testified first. According to her, mother
and father were neither suitable, nor fit, to raise R.B. She testified that father has “never”
had contact with R.B., and that mother is “mentally and physically unstable” and makes
“irrational decisions at the spur of the moment.”
2. {¶ 6} Grandmother testified that she was seeking custody of R.B. because, at the
time of hearing, mother was pregnant by a different man, and that she and the father of
the expectant child “argue a lot” and that their “living situation is unsafe [and] unstable.”
{¶ 7} For the first three months of R.B.’s life, grandmother, mother, and R.B. lived
together at grandmother’s home on Vance Street in Toledo. One day, mother went to the
store with R.B. and did not return. When grandmother called to ask where they were,
mother told her that she “[did not] want to be at home” and that she had “[her] reasons.”
Grandmother responded, “if you need some air, the baby can stay [with me]. You can
come home and see her, you know, as you need air. And she refused, refused, refused.”
About two months later, grandmother saw a video that “led [her] to go get the baby.” In
the video, mother was shown “arguing with [the] father” of her expectant child and
“throwing salt, sugar, something white all over him, and [R.B.] was lying right next to
him.” Grandmother retrieved R.B. after seeing the video and has cared for her since then.
{¶ 8} A few times a month, mother visits with R.B. at grandmother’s home for
about two hours. Under cross-examination, grandmother testified that she and mother
have “very little” contact with one another, that mother provides no diapers, formula,
food, or anything else for R.B. Grandmother claimed not to know where mother lives
because mother has identified three different addresses: an apartment “somewhere on the
east side,” a residence with an aunt on Peck Street, and “The Moody Manor.”
{¶ 9} Mother testified next. She claimed to live on Peck Street with her auntie.
Mother characterized grandmother’s testimony as “a little accurate” but maintained that
3. she “really want[s] [R.B.] to be with me.” Mother said that she is unemployed, because
she goes to school and because she has preeclampsia, which prevents her from standing
on her feet “for too long.” When asked how she would support R.B., mother testified that
she would get “clothes from the churches” where she volunteers, and she would continue
to rely upon WIC [Women, Infants, and Children] benefits. Mother testified that she
talks to R.B.’s father “sometimes.” According to her, father has not seen R.B. since R.B.
returned to grandmother’s home “because [grandmother] doesn’t want [R.B.] to be
around him.”
{¶ 10} At the conclusion of the hearing, the magistrate stated that she intended to
grant legal custody of R.B. to grandmother, and that mother and father would be entitled
to visit with R.B. by agreement of the parties. The magistrate issued a written decision
that same day, November 30, 2023, which the juvenile court adopted by judgment entry,
filed on December 8, 2023. Through appellate counsel, mother appealed and raises a
single assignment of error for our review.
Assignment of Error I: The trial court award of parenting time “as
agreed by the parties” was not supported by the manifest weight of the
evidence.
II. Law and Analysis
{¶ 11} “Juvenile courts have jurisdiction to hear institutional custody cases
(complaints filed by children services agencies alleging children to be abused, neglected
or dependent children) and to hear ‘private’ custody or non-institutional custody disputes
4. (which generally involve disputes between parents and non-parents or disputes between
unmarried parents).” In re Shepherd, 1999 WL 809760, *4 (4th Dist. Sept. 29, 1999).
R.C. 2151.23(A)(2) governs private custody disputes, like this one, between parents and
non-parents. In re Perales, 52 Ohio St.2d 89, 96 (1977). Under that statute, a juvenile
court has “exclusive original jurisdiction * * * to determine the custody of any child not a
ward of another court of this state.”
{¶ 12} In private custody cases between natural parents and non-parents, the
primary consideration is the natural parent’s fitness or suitability. Reynolds v. Goll, 75
Ohio St.3d 121 (1996); see also, In re Hockstok, 2002-Ohio-7208, syllabus (“a trial court
must make a parental unsuitability determination on the record before awarding legal
custody of the child to the nonparent.”). In In re Perales, the Ohio Supreme Court set
forth the following criteria to determine whether a natural parent is unsuitable:
“[T]he hearing officer may not award custody to the nonparent
without first making a finding of parental unsuitability—that is, without
first determining that a preponderance of the evidence shows [1] that the
parent abandoned the child, [2] that the parent contractually relinquished
custody of the child, [3] that the parent has become totally incapable of
supporting or caring for the child, or [4] that an award of custody to the
parent would be detrimental to the child. (Emphasis added.) Id. at syllabus
citing R.C. 2151.23(A)(2).
5. {¶ 13} “If a court concludes that any one of these circumstances describes the
conduct of a parent, the parent may be adjudged unsuitable, and the state may infringe
upon the fundamental parental liberty interest of child custody.” In re Hockstok at ¶ 17.
The nonparent seeking custody bears the burden of demonstrating that the parent is
unsuitable. Depinet v. Norville, 2020-Ohio-3843, ¶ 14 (3d Dist.).
{¶ 14} Because custody issues “are some of the most difficult and agonizing
decisions a trial judge must make, a trial judge must have wide latitude in considering all
the evidence * * * and such a decision must not be reversed absent an abuse of
discretion.” (Citation omitted.) Davis v. Flickinger, 77 Ohio St.3d 415, 418 (1997). As
applied in custody cases, that means, “[w]here an award of custody is supported by a
substantial amount of credible and competent evidence, such an award will not be
reversed as being against the weight of the evidence by a reviewing court. (Trickey v.
Trickey, 158 Ohio St. 9 (1952), approved and followed.)” Id., quoting Bechtol v. Bechtol,
49 Ohio St.3d 21 (1990), syllabus.
{¶ 15} In this case, the magistrate found, specifically as to mother, that “[m]other
is a minor. She is not employed and has an active warrant for failing to appear for
delinquency charges. The child has lived with [grandmother] since she was about 4
months old. [Grandmother] has been the primary care giver for the child. Mother
provides no support for the child and visits sporadically for a few hours at a time.” See
Magistrate’s Decision, Nov. 30, 2023. Based upon these findings, the magistrate
determined that mother was unsuitable under the third and fourth In re Perales factors.
6. That is, the magistrate found “[b]y a preponderance of the evidence * * * [that] Mother *
* * [has] become incapable of caring for [R.B.]” and that “Custody to Mother * * *
would be detrimental to the [child].” (Emphasis added.) Id. The magistrate awarded
legal custody of R.B. to grandmother and awarded parenting time to mother and father
“by agreement of the parties.” Following an independent review of the decision, the
juvenile court adopted the magistrate’s decision.
{¶ 16} On appeal, mother does not challenge either unsuitability finding. Indeed,
mother is not seeking reversal of trial court’s grant of legal custody to grandmother.
Instead, mother argues that the trial court “arguably” erred by ordering parenting time
“by agreement of the parties.” Mother claims that, given the lack of “cooperation”
between the parties, mother is “at risk of not being allowed regular contact with the
child.”
{¶ 17} Mother, however, failed to object to the magistrate’s decision. Under
Juv.R. 40(D)(3)(b), a party may file objections to a magistrate’s decision within fourteen
days after the filing of the decision. Importantly, under Juv. R. 40(D)(3)(b)(iv), “[e]xcept
for a claim of plain error, a party shall not assign as error on appeal the court’s adoption
of any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party has
objected to that finding or conclusion as required by Juv.R. 40(D)(3)(b).”
{¶ 18} Mother did not object to the magistrate’s decision. “The failure to make a
timely and specific objection to a magistrate’s [decision], as required under the rule,
7. results in a waiver of claimed error by the trial court in adopting a magistrate’s findings
of fact or conclusions of law.” Foos v. Foos, 2009-Ohio-3398, ¶ 16 (6th Dist.), citing
Goldfuss v. Davidson, 79 Ohio St.3d 116, 122 (1997) (The “failure to follow procedural
rules can result in forfeiture of rights.”); see also Felter v. Felter, 2017-Ohio-1075, ¶ 14
(6th Dist.) (“At the outset, we note that appellant did not timely object to the magistrate’s
decision. Therefore, she has waived all but plain error on appeal. See Civ.R.
53(D)(3)(b)(iv).”); In re S.A., 2013-Ohio-3047, ¶ 18 (2d Dist.) (“Mother failed to object
to the magistrate’s decision regarding the denial of her motion for continuance * * * as
required by Juv.R. 40(D)(3)(b)(iv). * * * Absent a showing of plain error, Mother’s
argument has been waived for purposes of appeal since she failed to object below.”); In
re C.B., 2011-Ohio-4537, ¶ 9 (2d Dist.) (Where mother failed to file objections to a
combined magistrate’s decision and judge’s order of legal custody and protective
supervision, mother’s arguments were waived for purposes of appeal, in the absence of
any evidence of plain error).
{¶ 19} Here, mother did not object to the magistrate decision, that mother’s
visitation would be scheduled “by agreement of the parties,” and she has not argued plain
error on appeal. She has, therefore, failed to preserve the issue for appellate review.
Consequently, we do not reach the merits of her argument, and mother’s assignment of
error is overruled. Accord, In re M.C., 2015-Ohio-1627, ¶ 28 (9th Dist.).
8. {¶ 20} The judgment of the Lucas County Court of Common Pleas, Juvenile
Division, is affirmed. Mother is ordered to pay the court costs of this appeal pursuant to
App. R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Myron C. Duhart, J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
9.